Brown v. Shirley Hill Coal Company

• Decision Date: 30 March 1911
• Docket Number: 7,457
• Parties: BROWN v. SHIRLEY HILL COAL COMPANY
• Court: Indiana Appellate Court

94 N.E. 574

47 Ind.App. 354

BROWN v. SHIRLEY HILL COAL COMPANY

No. 7,457

Court of Appeals of Indiana

March 30, 1911

From Sullivan Circuit Court; Charles E. Henderson, Judge.

Action by Thomas Brown against the Shirley Hill Coal Company. From a judgment for defendant, plaintiff appeals. (For opinion on transfer from Supreme Court, see 173 Ind. 133.).

Affirmed.

Geo. W Buff and W. P. Stratton, for appellant.

John T Hays and Will H. Hays, for appellee.

OPINION

IBACH, J.

Appellant brought this action against appellee in the Sullivan Circuit Court, to recover damages for injuries alleged to have been received by him while at work in appellee's mine. Appellee filed a demurrer to the amended complaint, for the reason that it did not state facts sufficient to constitute a cause of action, which demurrer was sustained. The only error assigned calls in question the action of the trial court in sustaining appellee's demurrer.

To hold this complaint sufficient it must appear, by proper averments, that appellee violated some duty which, at the time and place of the alleged injury, it owed to appellant, and which duty it had omitted to perform. The general rule in such cases is that the pleader must, by positive averments, set out in his complaint the facts creating the duty which has not been performed, and from such facts the court will then determine, as a matter of law, whether such duty existed. Laporte Carriage Co. v. Sullender (1905), 165 Ind. 290, 75 N.E. 277; Malott v. Sample (1905), 164 Ind. 645, 74 N.E. 245.

With this well-established rule in view, we will examine the complaint before us. So much of such pleading as described the place where appellant was assigned to work is as follows: "This plaintiff, under the direction of defendant, through John Quigley, who was then and there the mine boss of said defendant at said mine, was assigned to work in entries three and four south, off of a main west, in driving said entries three and four in turning the room necks thereof." The duty charged by appellant as owing to him by appellee is averred in the following language: "It was the duty of said defendant, through its mine boss, to see that all loose coal, rock and slate overhead and in the roof of said entries, including the room necks of said entries, where miners have to travel to and from their work, are taken down or carefully secured at times when miners are at work therein." It is also averred that it became and was the duty of said defendant, through its mine boss aforesaid, to see that as the miners advanced their work all loose coal, slate and rock overhead were taken down, or carefully secured against falling therein on the travel and air ways.

The averment of the failure to perform such duty charged against appellee is as follows: "Appellee did not perform its duty in that behalf in this, to wit, that said defendant did not, through its mine boss or otherwise, see that all loose coal, slate and rock overhead, in excavations made in entries and room necks, where miners travel to and from their work, were taken down or carefully secured, but carelessly and negligently allowed and permitted a large piece of slate or rock, in the roof of one of the room necks of said entry four south of the main west entry to become loose, and liable to fall on any one passing thereunder, which said fact was unknown to this plaintiff, but was known to defendant."

Then also follows an allegation that the miners furnished their own tools, and when they were not immediately used they were kept back a safe distance from the face of the entries in break throughs and room necks. And finally, appellant avers that "a fellow miner, working in a room turned off of said entry four south, asked plaintiff for the use of his cartridge pin, and said he would return it to the breakthrough, which was located thirty-five or forty feet in the rear of the face of said entry three south; that said pin was not returned by said fellow miner to the breakthrough before it was needed by plaintiff in prosecuting the work he had been assigned to do, and which work could not be prosecuted without said pin; that from the face of said entry, where plaintiff and his coworker Turney were ready to load and shoot, plaintiff went back to the breakthrough to get said cartridge pin, and not finding it there passed out of entry four south, and started through said entry to the fourth room neck, and went into said room neck a distance of six or eight feet, obtained the pin, and started back to his work, which was some distance away, when a large piece of slate fell and injured him."

The complaint is fatally defective. There is no actionable negligence charged against appellee. There is no rule of pleading more firmly established than the one which requires that in every charge of actionable negligence there must be an allegation of facts which shows a duty owing by the person charged to the injured person. It nowhere affirmatively appears by the facts averred that the injury for which this action is brought was received by appellant while engaged in his duties at the place where he was required to work; nor does it appear by direct averments that appellee owed appellant any duty to make safe the...